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Flash News & Analysis, 8-20: Contortions
Appeals Court Sides with Graham Center on 'Work for Hire,' Awards 'Acrobats' to Protas and 'Vacates' (for now) Center Right to Nine Other Works

By Paul Ben-Itzak
Copyright 2004 The Dance Insider

The Martha Graham Center Wednesday lost at least one ballet, "Acrobats of God," to Graham legal heir Ron Protas, and potentially nine others, including "Embattled Garden" and "Phaedra," but won its key argument to ownership of many of Martha Graham's ballets. Almost two years to the day after a Federal District Court awarded the Graham Center the rights to 45 works by Martha Graham -- the majority of her oeuvre -- an Appeals Court ruled that District Court Judge Miriam Goldman Cedarbaum was right to buy the Graham Center's core claim to work created while Graham was a full-time employee of the Center: If her job description included creating work and the works were not published, the ballets were made as works for hire and indisputably the property of her employer. (27 of the 45 works were deemed by Cedarbaum to have been created as 'work-for-hire,' the rights to the remaining 18 to have been otherwise assigned to the Center by Graham.)

In affirming in general the District Court's opinion, the United States Court of Appeals for the Second Circuit also agreed that, in contrast to the spin put on Cedarbaum's decision by plaintiff Protas, a former Graham company artistic director, and his chief ally in the media, the New York Times, Cedarbaum was not setting a dangerous precedent regarding creators' ownership of their product but merely adhering to precedents that go back nearly 100 years relating to work created by full-time employees as part of their job description. In accepting this argument, however, the Appeals Court also found that eight works were created during a period, 1956-1965, when Graham was not a full-time employee of the Center and choreography not part of her official duties.

"After the transfer of Graham's school to the corporation formed in 1956 for the purposes of teaching, researching, promoting, and creating dance through composition, commission, and performance, the newly incorporated School engaged Graham as its Program Director," the Appeals Court wrote. "Her salary was $15,000 per year for a term of ten years (from 1956 to 1966) for which she was obligated to give the School approximately one-third of her professional time each year. Although part of the School's purpose was the creation of dances, Graham's employment, per her contract, was only to teach and supervise the School's educational program, and not to choreograph. Indeed, during these ten years, Graham continued to receive income from other organizations for her dance teaching and choreography.

"Graham's regular employment duties did not oblige her to create dances from 1956 through 1965, and there is no evidence that the School (her part-time employer) or the Center commissioned her to create these dances.... Apparently having assumed that Graham's employment contract prior to 1966 included creation of choreography, the District Court determined copyright ownership for the... dances Graham choreographed from 1956 through 1965 by considering the publication status of these dances." Had her contract included the creation of dances, unpublished works made as 'work-for-hire' would automatically have gone to her employer, according to copyright law. Three of the dances had been published. The District Court found that neither side had established ownership for two of these works, "Clytemnestra" and "Circe," and awarded the third, "Acrobats of God," to the Center.

In its ruling Wednesday, the Appeals Court reversed Cedarbaum on "Acrobats of God" and awarded it to Protas, finding that the work had been published in video format and that Graham had asserted copyright -- and thus it was hers to leave to Protas when she left him everything she owned in her will.

At the premiere on April 27, 1960, reports Agnes DeMille in "Martha," a program note described "Acrobats of God" as "Martha Graham's fanfare for dance as an art... a celebration in honor of the trials and tribulations, the disciplines, denials, stringencies, glories and delights of a dancer's world... and of the world of the artist." DeMille recalled it as "a savage satire on the choreographer's aesthetic experiences. Martha was, of course, the choreographer. Her regisseur, who carried a bullwhip, was danced by David Wood. The performers entered like circus animals and practiced on a Noguchi barre which was formed very like the fender guarding a Victorian hearth, but one which had gone through a mangle and was bent, uptilted, curved. It was broad enough to walk on, sit on, lie on, and could be used for charming and piquant designs. There were also Paul Klee-like mobiles, one of which was a kind of fire screen on a flexible arm which Martha could draw in front of herself and hide behind, and which she did conceal herself behind every time th dancers asked for her help, at which points she simply withdrew and blotted herself out. So much for Graham's view on the choreographer." (From "Martha," copyright 1956, 1991 by Agnes DeMille and published by Random House, New York, 1991.)

Longtime Graham dancer Janet Eilber, currently director of Martha Graham Resources, recalled last night to the DI seeing "Acrobats of God" in high school. "I had no idea what I was looking at. But I have a very clear picture in my mind of Martha on stage in that costume. Even in her '70s she was that potent."

The Appeals Court agreed with Cedarbaum on "Clytemnestra" and "Circe" and vacated her decision to award seven of the works created between 1956 and 1965 to the Center: "Embattled Garden," a staple of the current Graham company repertoire; "Episodes: Part 1," commissioned by the New York City Ballet in 1959; "Phaedra"; "Secular Games"; "Legend of Judith," one of three ballets by Graham inspired by the Biblical heroine; "The Witch of Endor"; " and "Part Real-Part Dream ." The question of who owns these works was remanded to Cedarbaum, to determine "whether Graham assigned any of these seven works to the Center, or whether they passed to Protas through Graham's residuary estate."

The Appeals Court also ruled that the District Court had erred in awarding the Center two other dances, the early work "Tanagra" and "Duets" (from "Frescoes") on the belief that they had not been published; they had. Ownership of these ballets has also thus been sent back to Cedarbaum to reconsider.

In all, of the 45 dances (of a total of 70 created by Graham from 1926 to 1991 whose ownership Protas was claiming in his suit against the Center) awarded to the Center by Cedarbaum in her 2002 ruling, the Appeals Court upheld the Center's ownership of 35 ballets, leaving the Martha Graham Company with at least 45 ballets it can play without worry (including 10 in the public domain), and Ron Protas with two to play with, "Acrobats of God" and "Seraphic Dialogue" -- if the non-dancer can find any dancers to play with him.

With characteristic courage, Graham Center executive director Marvin Preston IV said he was not daunted by the Court's decision to 'remand' the nine ballets to Cedarbaum. "Note that the lower court is fully trusted," he pointed out last night to the DI. "It is not in contention with the Appeals Court, it is merely assigned the duty of filling in any gaps that the Appeals Court identifies. In this case, the Appeals Court commended Cedarbaum for the quality of her work..... We are highly confident that we will not in any way lose these works. The one that I know most well is 'Embattled Garden,' which I love. It's loss would be extremely painful. I am not pessimistic on this at all."

(Neither Protas's lawyer, Judd Burstein, Protas's last known assistant, Robert Russo, nor his last publicist of record, Ellen Zeisler, responded to e-mailed requests for comment. Burstein previously notified the DI that he had instructed his client not to speak to the DI.)

More important, Preston affirmed to the DI last night, is that the Appeals Court enthusiastically backed the work-for-hire basis at the heart of the Center's claim to be the rightful owner of work created while Graham was its full-time employee, covering the period 1966 until her death in 1991. It also heartily supported Cedarbaum's historical basis for the work-to-hire claim's legitimacy, underlying that the District judge was not re-writing copyright law but enforcing it.

The 1909 Copyright Act, the Appeals Court agreed, "provides no definition of 'work made for hire,' but it states the consequence of that designation. 'The word "author" shall include an employer in the case of works made for hire.' Thus, with respect to works for hire, the employer is legally regarded as the 'author,' as distinguished from the creator of the work, whom Learned Hand referred to as 'the "author" in the colloquial sense.'

".... In determining whether a work is a work for hire under the 1909 Act, we have generally applied the 'instance and expense' test. The copyright belongs to the person at whose 'instance and expense' the work was created. A work is made at the hiring party's 'instance and expense' when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out..... The right to direct and supervise the manner in which work is created need never be exercised." (Here the Court cites a case in which it was determined that the Army's power to supervise Army artists need not have been exercised for their sculptures to be works for hire.)

"The concept of 'work made for hire' remains in the 1976 Act," the Court notes, "which defines the phrase to mean 'a work prepared by an employee within the scope of his or her employment' or, for certain types of works, 'a work specially ordered or commissioned.'" Here -- in a note that could serve to inhabit Protas from appealing to the Supreme Court -- the Appeals court sited a case, Community for Creative Non-Violence v. Reid, in which the Supreme Court ruled that the determination of whether a person had created a work as an "employee within the scope of his or her employment" could be influenced by factors including "'whether the hiring party has the right to assign additional projects to the hired party,' 'the hired party's role in hiring and paying assistants,' 'the provision of employee benefits,' and 'the tax treatment of the hired party.'" Easing her own tax burden was a primary reason Graham sought to set up non-profit organizations for her school and company, which would then treat her as an employee.

"Thus," the Appeals Court continues, "under both the 1909 and 1976 Acts, a person's status as an employee renders a work created within the scope of employment as a work for hire, as to which the copyright belongs to the employer (in the absence of a contract providing otherwise)." (This proviso has been the Graham Center's primary argument to assure the rest of the field not to worry about the implications of its work-for-hire strategy on other choreographers' rights to their works: If a choreographer employed by a company wants to retain ownership, put it in the contract.) "Indeed, this was so before the 1909 Act." Here the Court cites the 1903 case of Bleistein v. Donaldson Lithographing Co., in which, it recalls, "There was evidence warranting the inference that the designs belonged to the plaintiffs, they having been produced by persons employed and paid by the plaintiffs in their establishment to make those very things."

"No doubt Graham was a self-motivator," the Court concedes, "and perhaps she would have choreographed her dances without the salary of Artistic Director, without the Center's support and encouragement, and without the existence of the Center at all, but all that is beside the point. The fact is that the Center did employ her to do the work, and she did the work in the course of her regular employment with the Center. Where an artist has entered into an explicit employment agreement to create works, works that she creates under that agreement cannot be exempted from the work-for-hire doctrine on speculation about what she would have accomplished if she had not been so employed.

"It is true that as the revered doyenne, Graham held remarkable sway over the Center's board of directors. However, Graham went to great lengths to become an employee of the Center so that she could insulate herself from the legal and financial aspects of her work. As an employee, Graham could have been discharged by the Center, even though that prospect was unlikely, and, for her part, Graham could have relinquished the support of a regular salary by electing to leave the Center."

Protas, the Court notes, contends "that Graham's role with the Center is more distant from a work-for-hire relationship than that of the monk whose writings and religious lectures the Ninth Circuit ruled were not works for hire under the 1909 Act, even though at the time of their creation the monk was supported by the church that he had founded. Whether or not we would agree with (that decision), we view it, as did the Ninth Circuit, as involving a person with much less of a connection to his 'employer' church than would obtain in a 'traditional (employment) relationship.' The monk was a religious leader who lived under a vow of poverty in quarters provided by the church that he founded and headed. He received a small monthly stipend, having renounced in writing any claim for compensation. In contrast, Graham received a salary specifically to create the intellectual property at issue in this litigation. After 1966, the Center paid Graham to be its Artistic Director, and her primary duty was to choreograph new dances."

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